tv [untitled] June 26, 2012 10:30am-11:00am EDT
challenges that are faced particularly in certain communities telling people when to vote, telling them the wrong information about voting on a republican ticket versus a democratic ticket. additionally, we have another flyer here claiming to be from the virginia state board of elections, stating that due to a larger expected voter turnout, the democrats must vote on november 5th and that republicans and their supporters may vote on november 4th. once again, this is a deceptive practice. this is false and misleading information. this is not protected speech. for years, the lawyers committee has documented this type of rise in deceptive tactics throughout our leadership in election protection nonpartisan coalition. this is the largest type of protection and voter education effort. in fact, it was out of these efforts that we realized there was a need for such legislation such as this deceptive practices bill. through our 866 hotline which is also something, a way in which
we receive calls and information about reports throughout this country, we have already received calls from over half a million people complaining about problems in their elections. this includes deceptive tactics like we mentioned here today. my colleague, jenny flanagan, will speak further to the instances that we encountered in the wisconsin recall election. recently, we have also -- are going to be releasing a report, a 2012 report on deceptive practices again with cause. in this report we provide recommendations of how to move forward. in this particular report, we discussed insufficiencies of federal and state law. while we agree that there is proper enforcement of current voting rights, the statutes provide -- and that proper enforcement can provide a significant deterrent to many forms of intimidation, they're not always sufficient. in particular, some point to section 11b of the voting rights act. as an adequate measure preconvenienting deceptive
tactics, however, this section is commonly known as the antiintimidation provision, does not contain the necessary criminal penalties to punish deceptive practices. moreover, only a few states actually have laws protecting voters from these types of practices and those that have done so, it is not completely clear exactly what type of deceptive practices would be criminalized. in some, because these current laws do not uniformly address variations of these types of deceptive tactics, prosecutions are therefore rare. ensuring that misinformation is immediately corrected and disseminated in a timely manner may often actually be the best remedy, especially when election day is near. this is why not only the private right of action but also the corrective action component of this bill is particularly important. this immediate dissemination of information, of corrective information, will mitigate the confusion experienced by voters, particularly as expressed by senator cardin earlier as encountered in maryland. i would like to briefly address
the claims of massive voter fraud, including false and multiple registrations. in short, the evidence does not substantiate this to be a true claim. actual voter fraud is extremely rare and often, it's not intentional. on the other hand, deceptive practices indeed are intentional efforts to disenfranchise entire communities. the lawyers committee strongly supports the deceptive practices bill and we urge this committee to move forward with all deliberate speed in order to pass this law. as we come upon our 50th anniversary in 2013, we hope that we will also be celebrating the progress this nation has taken to ensure that voting rights -- to protect the voting rights of all. as our grand marshal john lewis often says, time to act is now. we urge this committee to fulfill our country's democratic promise of fair and equal elections and pass the deceptive practices and voter intimidation prevention act of 2011. thank you. >> thank you. every time i see my friend john
lewis, i cannot help but think it wasn't that long ago when congressman lewis was a young man marching for the right to vote and nearly died because he wanted to exercise his right to vote. >> exactly. >> our next witness is john park, jr. he's of counsel with strickland, brockington and lewis in atlanta. he specializes in election redistricting legislative government affairs. he received his law degree from yale university. mr. park, glad to have you here. please go ahead, sir. and your whole statement will be made part of the record. >> mr. chairman, senator grassley, thank you for the opportunity to speak this morning on senate bill 1994. as i indicated, i have concerns
about this bill because it raises serious constitutional questions and because it's under-inclusive, not because i have proof of or condone the use of deceptive practices, voter intimidation or both. the first point i would like to make is that before congress creates new tools for the department of justice and private individuals to use, it should encourage the use of the ones that are presently existing. those tools including section 11b of the voting rights act are generally underutilized and should be put to use before new criminal penalties are created. we're talking about regulating political speech which we know to be at the core of the first amendment's protection and we know that regulation chills speech. the bill under consideration may chill legitimate expressions of opinion, it may chill statements on unsettled grounds of fact or
law, it may chill the making of even truthful statements and it will do so within 90 days of an election and that's both federal and state elections because they frequently coincide. during that time, anyone who wishes to speak will have to think about whether not simply whether what they're saying is truthful but rather, whether that statement could expose them to an action from the opposing party. what we know is coming on probably thursday, we're talking about false statements and the court in alvarez will address the power of congress to impose criminal penalties for statements that are untruthful, and we know we can't read anything into an oral argument, but it looks -- it's going to be
an interesting decision one way or the other. what you propose to do is give the department of justice and lawyers new tools and when lawyers get tools, they put them to use and frequently they put them to use trying to pound round pegs into square holes, and square pegs into round holes. when you talk about knowing, what do we understand knowing to be. do we know knew, somebody knew it, but we also think about whether they should have known it. so we're going to back up to should have known. we're going to back up to reckless. somebody makes a statement that may not be -- that someone will deem reckless. is that knowing. is a statement that's made negligently a knowing statement. we're also likely to see if a private right of action is created, a movement from effect
to impute intent and from intent to impute knowledge, and all of this has an obvious effect on the opposing campaign and the opposing parties. in my experience in alabama, as i talked about in my statement with the judicial inquiry commission, the commission -- the canons that governed the conduct of judicial candidates regulated their ability to make statements that were either known to be false or with reckless disregard of whether that information was false and statements knowing that the information disseminated would be deceiving or misleading to a reasonable person. while there was no private right of action and only the judicial inquiry commission could initiate charges, individuals
would review the ads of their opponents and make inquiries in the hope it would have an effect on the candidate. it would lock them up, require them to come in and explain the basis for their statement and that had a pernicious effect in at least one campaign. finally -- and i note that, you know, you're talking about 90 days before an election, that's a sensitive time and that should be read to heighten constitutional concerns. with respect to underinclusion, i noted that the senate 1994 doesn't address fraudulent registration, multiple registrations or compromised absentee ballots. i encourage the committee to address those. thank you for this opportunity. i'll be happy to answer any questions you may have. >> well, thank you. your full statement will be made part of the record.
i notice that you said that part of your opposition is based on the bill is under-inclusive because it does not address fraud and you identify testimony which raised some of the same concerns raised to this committee in 2007. i also note that the 2007 "new york times" article reported that five years into the bush administration's crackdown on voter fraud, they turned up virtually no evidence of any organized effort at voter fraud so i put that article also in the record. our next witness will be ms. jenny flanagan. mrs. flanagan's director of voting and elections at common cause. prior to that time she worked with the new york state legislature. she received her law degree and
master's in social work at university of denver. as with all witnesses, mrs. flanagan, your full statement will be made part of the record. please go ahead. >> thank you, mr. chairman, senator grassley, for the opportunity to testify here today about the deceptive practices and voter intimidation prevention act and how this bill provides proactive means to guard against this most heinous form of voter suppression we're talking about today. common cause is a nonpartisan, nonprofit organization dedicated to empowering citizens, ordinary people, to make their voices heard in our political process. common cause along with its coalition partners including the election protection coalition have received numerous complaints over the years in our state offices around the country from colorado to wisconsin, from ohio to pennsylvania. we have been responding to the kinds of intimidation and misleading acts that are being discussed here this morning. voter suppression has become a household phrase in recent
months and this is nothing to be proud of. there is a gap between the rhetoric and the reality of voter fraud and that can't go unnoticed. what we're focused on today is a real threat to our elections, coordinated, intentional efforts to intimidate and deceive voters to suppress turnout in our elections. the single most fundamental right of all americans is to cast a ballot in an election and be counted in our democratic process, so it is disheartening that today, we are here to address a crisis in our elections, where partisan operatives utilize trickery, lies and deceit to change election outcomes. most americans are shocked and appalled when they hear that these campaigns exist, but we know that they do, and we cannot stand by and wait for it to get worse. i want to focus my few minutes here to talk about some recent examples of deceptive practices that have affected voters and how this bill will address those problems. because the impact of spreading
false information is very real. when we receive a call from a voter who has been misled or is confused because of a deceptive flyer or robocall, we do everything in our power to help them access the correct information so that they can vote. but we don't hear from every affected voter. in pueblo, colorado on november 3rd, 2008, on the eve of the presidential election, voters in the heavily latino community received robocalls telling them their precinct had changed and giving them incorrect precinct locations to go to instead. the clerk and recorder found out about this call from a family member and immediately called the local media and held an impromptu press conference on his front lawn. on election day, his office was still inundated by calls from confused and angry voters who wondered how their precinct could have changed so suddenly the night before an election. without other tools for corrective action, clerk ortiz in pueblo took the necessary
steps to ensure his voters were able to vote on election day. that is not the case around the country. earlier this month, voters in wisconsin as has been discussed already reported receiving robocalls on election day giving them false information, specifically voters stated that the calls said if you sign the recall petition, your job is done and you don't need to vote on tuesday. well, to counter these calls, elected officials, civic engagement groups locally and nationally including common cause and the lawyers committee through our election protection coalition, we issued statements, we reached out to the media, called for immediate corrective action and let voters know what their actual rights were, and responsibilities in order to participate in the election. the time for federal reform is now. many states do not have statutes that adequately address deceptive practices and where they do exist, they vary greatly in scope and strength. the prevention and redress of deceptive practices should be addressed uniformly.
as i just told you about the colorado clerk, immediate corrective action in the wake of deceptive practice must take place as soon as reports come in. this legislation establishes a framework to do just that, on or prior to election day, because after the election, it's simply too late. once enacted, this bill will be stronger and more comprehensive than existing state laws and the critical opponents to combatting deceptive practices requires the strong penalties, the immediate corrective action and a true assessment of the problems that voters face each and every election. with these actions, we can assure that americans can enjoy the free exercise of elections. deceptive practices are one of the worst forms of voter suppression where we intentionally mislead voters about the process and prevent them potentially from voting. it often goes unaddressed and perpetrators are virtually never caught. therefore, it's time to do something about it here and now
so that our elections really can be of, by and for the people. i appreciate the opportunity to testify today and i look forward to the questions. . >> i appreciate you being here. i appreciate all three of you being here. i may direct this to mrs. house. as i read the legislation, i see a very narrow carve-out to infringing on constitutionally protected speech. i'm the son of a printer from vermont and i remember my parents one time as a child telling me that protect and revere the first amendment, the right of free speech, the right to practice any religion you want or none, if you want, and guaranteeing diversity of
thought and views in america and guaranteeing our democracy. i watch that very carefully. but let me ask you, you're a civil rights lawyer, you've had a lot of experience in this field. do you have any concerns this legislation might have a chilling effect on speech? >> thank you for that question. the answer to your question is no. we have specifically put in place working with your offices and with senator schumer, senator cardin, language that would ensure that this is not indeed chilling political speech. it's narrowly tailored and it serves -- the state has a compelling interest in order to protect this fundamental right to vote, and by specifically putting an intent standard in there, show that a person has to prove that -- we have to show there is an intent to provide misleading and false information
and that they knowingly did so, additionally, providing that there is a timeline by which this political or this not political speech but this type of speech can be limited within that 90 day period before the election and also, ensuring that there's a limitation on the type of speech that we're actually regulating which is time, place, manner, that is the way, that is the type of tailoring that is necessary to conform to the standards by which the supreme court has set forth in order to ensure that the first amendment protections are provided. >> well, you know, one of the things we always look at when any legislation comes up, is this necessary. one of the arguments we're hearing against this legislation is there's plenty of remedies currently available to protect voters from intimidation, deception. i take it you don't agree with that?
>> you're right. i don't agree with that. and the evidence doesn't bear that. we have documented, we have put together this report with common cause, kind of looking at the state laws that are currently in effect and i believe there's only about ten of the states currently, i think upwards of ten or so, that actually have deceptive practices laws on the books and in fact, they're not very vigorous and not everyone is actually enforcing those laws in a way that is going to ensure that we're protecting people's rights when they do have these type of deceptive tactics and flyers that are occurring within their state. maryland is an anomaly and we're very encouraged and happy that there was proper enforcement that took place after what happened, particularly during senator cardin's race. however, that is not the case across the board. as jenny indicated earlier, we need a uniform law, particularly on the federal level, to ensure that we do have this type of enforcement by the federal government and that we are able to provide corrective action.
>> i looked at some of the material getting ready for this. the letters in spanish targeted california latino voters stating that it was a crime for immigrants to vote. i think my grandparents were immigrants from italy. i'm very, very proud. i remember as a little boy going with them into the small town hall in vermont where they lived to watch them vote. this letter didn't point out that naturalized citizens like my parents and my grandparents or my wife's parents can vote as any of the rest of us. is this just one very rare example of intimidation or do you have others? >> unfortunately that's not a
rare example of intimidation. we have experienced that in other states as well. we have experienced those types of flyers also at other things in arizona and flyers telling people they'll be criminalized or sent to jail if they have a traffic ticket. therefore, they can't vote. they're ineligible. things like that in wisconsin. it's particularly discouraging to have these type of flyers occurring across the country particularly when we know they are being targeted to certain demographic of voters. as you mentioned, the flyer that you spoke about was targeted to immigrants. unless i know my history lesson wrong, i believe everyone is an immigrant except the native american population here. i may not be an immigrant because i was brought here by a slave but any way the point is that it is not something that we need to allow to continue in this country because this is in fact an attempt to undermine a very core value that we have in
the democratic process which is the right to vote. >> my time has expired. i have other questions and i was going to have a couple questions for you for the record that i would like answered. senator grassley. >> thank you, mr. chairman. thanks to all of the witnesses. mr. park, you have experienced some private right of action litigation involving political candidates. most of the witnesses today see only very positive results that could come from private right of action suits under the bill. could you describe some of the negative effects of private right of action in practice and under the constitution against deceptive statements and context of a political campaign. >> going back to my experience with the alabama judicial inquire commission, one of the effects of bringing charges against a candidate who was then
a judge was to disqualify that judge from further service. and the judicial inquiry commission brought charges against one of the candidates for chief justice in a campaign with respect to certain statements made in advertisements. that affected the court's business and affected his ability to do his job and as it turned out the cannons were substantially unconstitutional. the regulated speech within the scope of the first amendment. moving to this bill, you're empowering people to file lawsuits to seek to stop speech with which they disagree and that speech may or may not be knowingly false but the lawsuit is available for them to do that and that will have a chilling effect on them.
it will give them a tool that they can use to knot up opposing campaigns and for those reasons i think congress should hesitate before it creates this private right of action. >> your prepared testimony mentions that many practices in the bill seek to prohibit what are already violations of federal criminal law. one of the few that is not is endorsement provisions. could you outline how federal law already criminalized many of the deceptive and intimidating practices that have been offered to supposedly justify the law. >> there are several federal statutes including one criminal statute, 18 u.s. code 241. there is section 11b of the voting rights act, which is civil and there's 42 u.s. code
79 b. in new hampshire, the success prosecution was brought under u.s. 42 code. and am maryland under state law. if the department of justice doesn't want to use existing remedies, it should explain why it hasn't used them to date. >> the bill would prohibit claims that a candidate or party has endorsed a candidate that it has not. could you explain first amendment problems with that prohibition? >> a claim that someone has endorsed a candidate is not always easy to determine whether that's in fact true. endorsements are sometimes subtle. can you endorse by presence at a campaign event? and can you claim the support of
someone with whom you have spoken privately? the bill would give somebody a tool to to file suit and say you are not in fact endorsed by that other person whose support you claim. and you're entitled to make truthful statements and you would have to defend the truthfulness of the statement that you made. >> one of the witnesses today favors this bill because it effects only unprotected speech and would prohibit the dispersal of arguable fraudulent speech. is arguable fraudulent speech, unprotected speech under the first amendment? >> i don't think so. i don't think that -- one of the points you can draw from the oral argument transcript in alvarez is the court seems to
disagree with the notion that there is no -- the first amendment does not prohibit all statements that are false much less statements that are arguably false. >> could you describe the unconstitutional chilling effect the enactment of this bill would create? >> in the 90-day period before an election, someone who wishes to speak about any of the subjects that are in the bill and in that regard there are things you can say that are truthful. some people cannot vote. some noncitizens in particular are not entitled to vote. you have to consider whether your expression of opinion, your expression with respect to an unsettled question or simple truthful speech with which an opponent may disagree could bring you a lawsuit and you have to weigh the value of that
speech again and you're making that speech against the possibility that you will be sued and chilling effect is one to which the supreme court has repeatedly pointed to in first amendment cases. >> thank you. >> thank you. i'm going to submit for the record statements to support for the bill from naacp, national urban league, project vote. i have to go to the floor. isle yield to senator whitehouse and then senator lee and senator schumer is coming over to take over the gavel. thank you all for being we're. we'll chat more. >> thank you, chairman. i wonder if i could ask any of the witnesses to speak for a moment about the procedure known as voter caging. the history of that kind of
activity and the extent to which this would be addressed by the measure you're describing. >> you can go. >> ms. house. >> sure. so voter caging is another type of deceptive and intimidation tactic that's also been occurring. >> can you describe it for the record? >> absolutely. it is essentially kind of a term of art that is usually used in marketing but now it's essent l essentially when people -- when organizations are those that attempt to send materials or documentation to verify our residency and if that information is sent back and is not verified by